united states v. montoya hernandez · mendez-jimenez, 709 f. 2d 1300, 1301 (ca9 1983). the...

UNITED STATES v. MONTOYA DE HERNANDEZ

Syllabus

UNITED STATES v. MONTOYA DE HERNANDEZCERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT

No. 84-755. Argued April 24, 1985-Decided July 1, 1985

Upon her arrival at Los Angeles International Airport on a flight fromBogota, Colombia, respondent was detained by customs officials when,after examination of her passport and the contents of her valise andquestioning by the officials, she was suspected of being a "balloon swal-lower," i. e., one who attempts to smuggle narcotics into this countryhidden in her alimentary canal. She was detained incommunicado foralmost 16 hours before the officials sought a court order authorizing apregnancy test (she having claimed to be pregnant), an x ray, and arectal examination. During those 16 hours she was given the option ofreturning to Colombia on the next available flight, agreeing to an x ray,or remaining in detention until she produced a monitored bowel move-ment. She chose the first option, but the officials were unable to placeher on the next flight, and she refused to use the toilet facilities. Pursu-ant to the court order, a pregnancy test was conducted at a hospital andproved negative, and a rectal examination resulted in the obtaining of 88cocaine-filled balloons that had been smuggled in her alimentary canal.Subsequently, after a suppression hearing, the District Court admittedthe cocaine in evidence against respondent, and she was convicted of var-ious federal narcotics offenses. The Court of Appeals reversed, holdingthat respondent's detention violated the Fourth Amendment because thecustoms officials did not have a "clear indication" of alimentary canalsmuggling at the time respondent was detained.

Held: The detention of a traveler at the border, beyond the scope of a rou-tine customs search and inspection, is justified at its inception if customsagents, considering all the facts surrounding the traveler and her trip,reasonably suspect that the traveler is smuggling contraband in heralimentary canal; here, the facts, and their rational inferences, knownto the customs officials clearly supported a reasonable suspicion thatrespondent was an alimentary canal smuggler. Pp. 536-544.

(a) The Fourth Amendment's emphasis upon reasonableness is notconsistent with the creation of a "clear indication" standard to cover acase such as this as an intermediate standard between "reasonable suspi-cion" and "probable cause." Pp. 537-541.

(b) The "reasonable suspicion" standard effects a needed balance be-tween private and public interests when law enforcement officials must

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Opinion of the Court 473 U. S.

make a limited intrusion on less than probable cause. It thus fits wellinto situations involving alimentary canal smuggling at the border: thistype of smuggling gives no external signs, and inspectors will rarelypossess probable cause to arrest or search, yet governmental interestsin stopping smuggling at the border are high. Pp. 541-542.

(c) Under the circumstances, respondent's detention, while long, un-comfortable, and humiliating, was not unreasonably long. Alimentarycanal smuggling cannot be detected in the amount of time in which otherillegal activity may be investigated through brief stops. When respond-ent refused an x ray as an alternative to simply awaiting her bowelmovement, the customs inspectors were left with only two practicalalternatives: detain her for such time as necessary to confirm their sus-picions or turn her loose into the interior of the country carryingthe reasonably suspected contraband drugs. Moreover, both the lengthof respondent's detention and its discomfort resulted solely from themethod that she chose to smuggle illicit drugs into this country. And inthe presence of an articulable suspicion of alimentary canal smuggling,the customs officials were not required by the Fourth Amendmentto pass respondent and her cocaine-filled balloons into the interior.Pp. 542-544.

731 F. 2d 1369, reversed.

REHNQUIST, J., delivered the opinion of the Court, in which BURGER,

C. J., and WHITE, BLACKMUN, POWELL, and O'CONNOR, JJ., joined.STEVENS, J., filed an opinion concurring in the judgment, post, p. 545.BRENNAN, J., filed a dissenting opinion, in which MARSHALL, J., joined,post, p. 545.

Deputy Solicitor General Frey argued the cause for theUnited States. With him on the briefs were SolicitorGeneral Lee, Assistant Attorney General Trott, and JohnF. De Pue.

Peter M. Horstman, by appointment of the Court, 469U. S. 1204, argued the cause for respondent. With him onthe brief was Janet I. Levine.

JUSTICE REHNQUIST delivered the opinion of the Court.

Respondent Rosa Elvira Montoya de Hernandez was de-tained by customs officials upon her arrival at the Los Ange-les Airport on a flight from Bogota, Colombia. She wasfound to be smuggling 88 cocaine-filled balloons in her alimen-


531 Opinion of the Court

tary canal, and was convicted after a bench trial of variousfederal narcotics offenses. A divided panel of the UnitedStates Court of Appeals for the Ninth Circuit reversed herconvictions, holding that her detention violated the FourthAmendment to the United States Constitution because thecustoms inspectors did not have a "clear indication" of ali-mentary canal smuggling at the time she was detained. 731F. 2d 1369 (1984). Because of a conflict in the decisions ofthe Courts of Appeals on this question and the importance ofits resolution to the enforcement of customs laws, we grantedcertiorari. 469 U. S. 1188. We now reverse.

Respondent arrived at Los Angeles International Airportshortly after midnight, March 5, 1983, on Avianca Flight080, a direct 10-hour flight from Bogota, Colombia. Hervisa was in order so she was passed through Immigrationand proceeded to the customs desk. At the customs deskshe encountered Customs Inspector Talamantes, who re-viewed her documents and noticed from her passport thatshe had made at least eight recent trips to either Miami orLos Angeles. Talamantes referred respondent to a second-ary customs desk for further questioning. At this deskTalamantes and another inspector asked respondent generalquestions concerning herself and the purpose of her trip.Respondent revealed that she spoke no English and had nofamily or friends in the United States. She explained inSpanish that she had come to the United States to purchasegoods for her husband's store in Bogota. The customs in-spectors recognized Bogota as a "source city" for narcotics.Respondent possessed $5,000 in cash, mostly $50 bills, buthad no billfold. She indicated to the inspectors that she hadno appointments with merchandise vendors, but planned toride around Los Angeles in taxicabs visiting retail storessuch as J. C. Penney and K-Mart in order to buy goods forher husband's store with the $5,000.

Respondent admitted that she had no hotel reservations,but stated that she planned to stay at a Holiday Inn. Re-spondent could not recall how her airline ticket was pur-

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chased. When the inspectors opened respondent's one smallvalise they found about four changes of "cold weather" cloth-ing. Respondent had no shoes other than the high-heeledpair she was wearing. Although respondent possessed nochecks, waybills, credit cards, or letters of credit, she didproduce a Colombian business card and a number of oldreceipts, waybills, and fabric swatches displayed in a photoalbum.

At this point Talamantes and the other inspector suspectedthat respondent was a "balloon swallower," one who attemptsto smuggle narcotics into this country hidden in her ali-mentary canal. Over the years Inspector Talamantes hadapprehended dozens of alimentary canal smugglers arrivingon Avianca Flight 080. See App. 42; United States v.Mendez-Jimenez, 709 F. 2d 1300, 1301 (CA9 1983).

The inspectors requested a female customs inspector totake respondent to a private area and conduct a patdown andstrip search. During the search the female inspector feltrespondent's abdomen area and noticed a firm fullness, as ifrespondent were wearing a girdle. The search revealed nocontraband, but the inspector noticed that respondent waswearing two pairs of elastic underpants with a paper towellining the crotch area.

When respondent returned to the customs area and thefemale inspector reported her discoveries, the inspector incharge told respondent that he suspected she was smugglingdrugs in her alimentary canal. Respondent agreed to theinspector's request that she be x-rayed at a hospital but inanswer to the inspector's query stated that she was preg-nant. She agreed to a pregnancy test before the x ray. Re-spondent withdrew the consent for an x ray when she learnedthat she would have to be handcuffed en route to the hospital.The inspector then gave respondent the option of returningto Colombia on the next available flight, agreeing to an x ray,or remaining in detention until she produced a monitoredbowel movement that would confirm or rebut the inspectors'



suspicions. Respondent chose the first option and wasplaced in a customs office under observation. She was toldthat if she went to the toilet she would have to use a waste-basket in the women's restroom, in order that female cus-toms inspectors could inspect her stool for balloons orcapsules carrying narcotics. The inspectors refused re-spondent's request to place a telephone call.

Respondent sat in the customs office, under observation,for the remainder of the night. During the night customsofficials attempted to place respondent on a Mexican airlinethat was flying to Bogota via Mexico City in the morning.The airline refused to transport respondent because shelacked a Mexican visa necessary to land in Mexico City. Re-spondent was not permitted to leave, and was informed thatshe would be detained until she agreed to an x ray or herbowels moved. She remained detained in the customs officeunder observation, for most of the time curled up in a chairleaning to one side. She refused all offers of food and drink,and refused to use the toilet facilities. The Court of Appealsnoted that she exhibited symptoms of discomfort consistentwith "heroic efforts to resist the usual calls of nature." 731F. 2d, at 1371.

At the shift change at 4:00 o'clock the next afternoon, al-most 16 hours after her flight had landed, respondent stillhad not defecated or urinated or partaken of food or drink.At that time customs officials sought a court order authoriz-ing a pregnancy test, an x ray, and a rectal examination.The Federal Magistrate issued an order just before midnightthat evening, which authorized a rectal examination and in-voluntary x ray, provided that the physician in charge con-sidered respondent's claim of pregnancy. Respondent wastaken to a hospital and given a pregnancy test, which laterturned out to be negative. Before the results of the preg-nancy test were known, a physician conducted a rectal ex-amination and removed from respondent's rectum a ballooncontaining a foreign substance. Respondent was then placed

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formally under arrest. By 4:10 a. m. respondent had passed6 similar balloons; over the next four days she passed 88balloons containing a total of 528 grams of 80% pure cocainehydrochloride.

After a suppression hearing the District Court admittedthe cocaine in evidence against respondent. She was con-victed of possession of cocaine with intent to distribute, 21U. S. C. § 841(a)(1), and unlawful importation of cocaine, 21U. S. C. §§952(a), 960(a).

A divided panel of the United States Court of Appeals forthe Ninth Circuit reversed respondent's convictions. Thecourt noted that customs inspectors had a "justifiably highlevel of official skepticism" about respondent's good motives,but the inspectors decided to let nature take its course ratherthan seek an immediate magistrate's warrant for an x ray.731 F. 2d, at 1372. Such a magistrate's warrant requireda "clear indication" or "plain suggestion" that the travelerwas an alimentary canal smuggler under previous decisionsof the Court of Appeals. See United States v. Quintero-Castro, 705 F. 2d 1099 (CA9 1983); United States v. Mendez-Jimenez, 709 F. 2d 1300, 1302 (CA9 1983); but cf. SouthDakota v. Opperman, 428 U. S. 364, 370, n. 5 (1976). Thecourt applied this required level of suspicion to respondent'scase. The court questioned the "humanity" of the inspec-tors' decision to hold respondent until her bowels moved,knowing that she would suffer "many hours of humiliatingdiscomfort" if she chose not to submit to the x-ray examina-tion. The court concluded that under a "clear indication"standard "the evidence available to the customs officers whenthey decided to hold [respondent] for continued observationwas insufficient to support the 16-hour detention." 731 F.2d, at 1373.

The Government contends that the customs inspectors rea-sonably suspected that respondent was an alimentary canalsmuggler, and this suspicion was sufficient to justify thedetention. In support of the judgment below respondent



argues, inter alia, that reasonable suspicion would not sup-port respondent's detention, and in any event the inspectorsdid not reasonably suspect that respondent was carryingnarcotics internally.

The Fourth Amendment commands that searches and sei-zures be reasonable. What is reasonable depends upon allof the circumstances surrounding the search or seizure andthe nature of the search or seizure itself. New Jersey v.T. L. 0., 469 U. S. 325, 337-342 (1985). The permissi-bility of a particular law enforcement practice is judged by"balancing its intrusion on the individual's Fourth Amend-ment interests against its promotion of legitimate govern-mental interests." United States v. Villamonte-Marquez,462 U. S. 579, 588 (1983); Delaware v. Prouse, 440 U. S. 648,654 (1979); Camara v. Municipal Court, 387 U. S. 523(1967).

Here the seizure of respondent took place at the interna-tional border. Since the founding of our Republic, Congresshas granted the Executive plenary authority to conduct rou-tine searches and seizures at the border, without probablecause or a warrant, in order to regulate the collection ofduties and to prevent the introduction of contraband intothis country. See United States v. Ramsey, 431 U. S. 606,616-617 (1977), citing Act of July 31, 1789, ch. 5, 1 Stat. 29.This Court has long recognized Congress' power to policeentrants at the border. See Boyd v. United States, 116U. S. 616, 623 (1886). As we stated recently:

"'Import restrictions and searches of persons or pack-ages at the national border rest on different consid-erations and different rules of constitutional law fromdomestic regulations. The Constitution gives Con-gress broad comprehensive powers "[t]o regulateCommerce with foreign Nations," Art. I, § 8, cl. 3. His-torically such broad powers have been necessary to pre-vent smuggling and to prevent prohibited articles from

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entry."' Ramsey, supra, at 618-619, quoting UnitedStates v. 12 200-Ft. Reels of Film, 413 U. S. 123, 125(1973).

Consistently, therefore, with Congress' power to protectthe Nation by stopping and examining persons entering thiscountry, the Fourth Amendment's balance of reasonablenessis qualitatively different at the international border than inthe interior. Routine searches of the persons and effects ofentrants are not subject to any requirement of reasonablesuspicion, probable cause, or warrant,1 and first-class mailmay be opened without a warrant on less than probable cause,Ramsey, supra. Automotive travelers may be stopped atfixed checkpoints near the border without individualized sus-picion even if the stop is based largely on ethnicity, UnitedStates v. Martinez-Fuerte, 428 U. S. 543, 562-563 (1976), andboats on inland waters with ready access to the sea may behailed and boarded with no suspicion whatever. UnitedStates v. Villamonte-Marquez, supra.

These cases reflect longstanding concern for the protectionof the integrity of the border. This concern is, if anything,heightened by the veritable national crisis in law enforcementcaused by smuggling of illicit narcotics, see United States v.Mendenhall, 446 U. S. 544, 561 (1980) (POWELL, J., concur-ring), and in particular by the increasing utilization of alimen-tary canal smuggling. This desperate practice appears to bea relatively recent addition to the smugglers' repertoire ofdeceptive practices, and it also appears to be exceedingly dif-

See United States v. Ramsey, 431 U. S., at 616-619; Almeida-Sanchez

v. United States, 413 U. S. 266, 272-273 (1973); id., at 288 (WHITE, J., dis-senting). As the Court stated in Carroll v. United States, 267 U. S. 132,154 (1925):

"Travellers may be so stopped in crossing an international boundarybecause of national self protection reasonably requiring one entering thecountry to identify himself as entitled to come in and his belongings aseffects which may be lawfully brought in."



ficult to detect.2 Congress had recognized these difficulties.Title 19 U. S. C. § 1582 provides that "all persons coming intothe United States from foreign countries shall be liable todetention and search authorized ... [by customs regula-tions]." Customs agents may "stop, search, and examine"any "vehicle, beast or person" upon which an officer suspectsthere is contraband or "merchandise which is subject toduty." § 482; see also §§ 1467, 1481; 19 CFR §§ 162.6, 162.7(1984).

Balanced against the sovereign's interests at the borderare the Fourth Amendment rights of respondent. Havingpresented herself at the border for admission, and havingsubjected herself to the criminal enforcement powers of theFederal Government, 19 U. S. C. § 482, respondent was enti-tled to be free from unreasonable search and seizure. Butnot only is the expectation of privacy less at the border thanin the interior, see, e. g., Carroll v. United States, 267 U. S.

'See United States v. DeMontoya, 729 F. 2d 1369 (CA11 1984) (re-

quired surgery; swallowed 100 cocaine-filled condoms); United States v.Pino, 729 F. 2d 1357 (CAll 1984) (required surgery; 120 cocaine-filled pel-lets); United States v. Mejia, 720 F. 2d 1378 (CA5 1983) (75 balloons);United States v. Couch, 688 F. 2d 599, 605 (CA9 1982) (36 capsules);United States v. Quintero-Castro, 705 F. 2d 1099 (CA9 1983) (120 bal-loons); United States v. Saldarriaga-Marin, 734 F. 2d 1425 (CAll 1984);United States v. Vega-Barvo, 729 F. 2d 1341 (CAll 1984) (135 condoms);United States v. Mendez-Jimenez, 709 F. 2d 1300 (CA9 1983) (102 bal-loons); United States v. Mosquera-Ramirez, 729 F. 2d 1352 (CAll 1984)(95 condoms); United States v. Castrillon, 716 F. 2d 1279 (CA9 1983) (83balloons); United States v. Castaneda-Castaneda, 729 F. 2d 1360 (CAll1984) (2 smugglers; 201 balloons); United States v. Caicedo-Guarnizo, 723F. 2d 1420 (CA9 1984) (85 balloons); United States v. Henao-Castano, 729F. 2d 1364 (CAll 1984) (85 condoms); United States v. Ek, 676 F. 2d 379(CA9 1982) (30 capsules); United States v. Padilla, 729 F. 2d 1367 (CAll1984) (115 condoms); United States v. Gomez-Diaz, 712 F. 2d 949 (CA51983) (69 balloons); United States v. D'Allerman, 712 F. 2d 100 (CA5 1983)(80 balloons); United States v. Contento-Pachon, 723 F. 2d 691 (CA9 1984)(129 balloons).

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132, 154 (1925); cf. Florida v. Royer, 460 U. S. 491, 515(1983) (BLACKMUN, J., dissenting), the Fourth Amendmentbalance between the interests of the Government and theprivacy right of the individual is also struck much more favor-ably to the Government at the border. Supra, at 538.

We have not previously decided what level of suspicionwould justify a seizure of an incoming traveler for purposesother than a routine border search. Cf. Ramsey, 431 U. S.,at 618, n. 13. The Court of Appeals held that the initial de-tention of respondent was permissible only if the inspectorspossessed a "clear indication" of alimentary canal smuggling.731 F. 2d, at 1372, citing United States v. Quintero-Castro,705 F. 2d 1099 (CA9 1983); cf. United States v. Mendez-Jimenez, 709 F. 2d 1300 (CA9 1983). This "clear indication"language comes from our opinion in Schmerber v. California,384 U. S. 757 (1966), but we think that the Court of Appealsmisapprehended the significance of that phrase in the contextin which it was used in Schmerber.8 The Court of Appealsviewed "clear indication" as an intermediate standard be-tween "reasonable suspicion" and "probable cause." SeeMendez-Jimenez, supra, at 1302. But we think that thewords in Schmerber were used to indicate the necessity forparticularized suspicion that the evidence sought might befound within the body of the individual, rather than as enun-ciating still a third Fourth Amendment threshold between"reasonable suspicion" and "probable cause."

No other court, including this one, has ever adoptedSchmerber's "clear indication" language as a Fourth Amend-ment standard. See, e. g., Winston v. Lee, 470 U. S. 753,

In that case we stated:"The interests in human dignity and privacy which the Fourth Amendmentprotects forbid any such intrusion [beyond the body's surface] on the merechance that desired evidence might be obtained. In the absence of a clearindication that in fact such evidence will be found, these fundamentalhuman interests require law officers to suffer the risk that such evidencemay disappear unless there is an immediate search." 384 U. S., at769-770.



759-763 (1985) (surgical removal of bullet for evidence). In-deed, another Court of Appeals, faced with facts almost iden-tical to this case, has adopted a less strict standard basedupon reasonable suspicion. See United States v. Mosquera-Ramirez, 729 F. 2d 1352, 1355 (CAll 1984). We do notthink that the Fourth Amendment's emphasis upon reason-ableness is consistent with the creation of a third verbalstandard in addition to "reasonable suspicion" and "probablecause"; we are dealing with a constitutional requirement ofreasonableness, not mens rea, see United States v. Bailey,444 U. S. 394, 403-406 (1980), and subtle verbal gradationsmay obscure rather than elucidate the meaning of the provi-sion in question.

We hold that the detention of a traveler at the border,beyond the scope of a routine customs search and inspection,is justified at its inception if customs agents, considering allthe facts surrounding the traveler and her trip, reasonablysuspect that the traveler is smuggling contraband in heralimentary canal.4

The "reasonable suspicion" standard has been applied in anumber of contexts and effects a needed balance between pri-vate and public interests when law enforcement officials mustmake a limited intrusion on less than probable cause. It thusfits well into the situations involving alimentary canal smug-gling at the border: this type of smuggling gives no externalsigns and inspectors will rarely possess probable cause toarrest or search, yet governmental interests in stoppingsmuggling at the border are high indeed. Under this stand-ard officials at the border must have a "particularized andobjective basis for suspecting the particular person" of ali-

'It is also important to note what we do not hold. Because the issuesare not presented today we suggest no view on what level of suspicion, ifany, is required for nonroutine border searches such as strip, body-cavity,or involuntary x-ray searches. Both parties would have us decide theissue of whether aliens possess lesser Fourth Amendment rights at theborder; that question was not raised in either court below and we do notconsider it today.

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mentary canal smuggling. United States v. Cortez, 449U. S. 411, 417 (1981); id., at 418, citing Terry v. Ohio, 392U. S. 1, 21, n. 18 (1968).

The facts, and their rational inferences, known to customsinspectors in this case clearly supported a reasonable suspi-cion that respondent was an alimentary canal smuggler. Weneed not belabor the facts, including respondent's implausiblestory, that supported this suspicion, see supra, at 533-536. The trained customs inspectors had encountered manyalimentary canal smugglers and certainly had more thanan "inchoate and unparticularized suspicion or 'hunch,"'Terry, supra, at 27, that respondent was smuggling narcoticsin her alimentary canal. The inspectors' suspicion was a"'common-sense conclusio[n] about human behavior' uponwhich 'practical people,'- including government officials, areentitled to rely." T. L. 0., 469 U. S., at 346, citing UnitedStates v. Cortez, supra.

The final issue in this case is whether the detention ofrespondent was reasonably related in scope to the circum-stances which justified it initially. In this regard we havecautioned that courts should not indulge in "unrealisticsecond-guessing," United States v. Sharpe, 470 U. S. 675,686 (1985), and we have noted that "creative judge[s], en-gaged in post hoc evaluations of police conduct can almostalways imagine some alternative means by which the objec-tives of the police might have been accomplished." Id., at686-687. But "[t]he fact that the protection of the publicmight, in the abstract, have been accomplished by 'less intru-sive' means does not, in itself, render the search unreason-able." Id., at 687, citing Cady v. Dombrowski, 413 U. S.433, 447 (1973). Authorities must be allowed "to graduatetheir response to the demands of any particular situation."United States v. Place, 462 U. S. 696, 709, n. 10 (1983).Here, respondent was detained incommunicado for almost 16hours before inspectors sought a warrant; the warrant thentook a number of hours to procure, through no apparent fault



of the inspectors. This length of time undoubtedly exceedsany other detention we have approved under reasonable sus-picion. But we have also consistently rejected hard-and-fast time limits, Sharpe, supra; Place, supra, at 709, n. 10.Instead, "common sense and ordinary human experiencemust govern over rigid criteria." Sharpe, supra, at 685.

The rudimentary knowledge of the human body whichjudges possess in common with the rest of humankind tells usthat alimentary canal smuggling cannot be detected in theamount of time in which other illegal activity may be investi-gated through brief Terry-type stops. It presents few, ifany external signs; a quick frisk will not do, nor will even astrip search. In the case of respondent the inspectors hadavailable, as an alternative to simply awaiting her bowelmovement, an x ray. They offered her the alternative ofsubmitting herself to that procedure. But when she refusedthat alternative, the customs inspectors were left with onlytwo practical alternatives: detain her for such time as neces-sary to confirm their suspicions, a detention which would lastmuch longer than the typical Terry stop, or turn her looseinto the interior carrying the reasonably suspected contra-band drugs.

The inspectors in this case followed this former procedure.They no doubt expected that respondent, having recentlydisembarked from a 10-hour direct flight with a full andstiff abdomen, would produce a bowel movement withoutextended delay. But her visible efforts to resist the call ofnature, which the court below labeled "heroic," disappointedthis expectation and in turn caused her humiliation and dis-comfort. Our prior cases have refused to charge police withdelays in investigatory detention attributable to the suspect'sevasive actions, see Sharpe, 470 U. S., at 687-688; id., at 697(MARSHALL, J., concurring in judgment), and that principleapplies here as well. Respondent alone was responsible formuch of the duration and discomfort of the seizure.

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Under these circumstances, we conclude that the deten-tion in this case was not unreasonably long. It occurredat the international border, where the Fourth Amendmentbalance of interests leans heavily to the Government. Atthe border, customs officials have more than merely an in-vestigative law enforcement role. They are also charged,along with immigration officials, with protecting this Nationfrom entrants who may bring anything harmful into thiscountry, whether that be communicable diseases, narcotics,or explosives. See 8 U. S. C. §§1182(a)(23), 1182(a)(6),1222; 19 CFR §§ 162.4-162.7 (1984). See also 19 U. S. C.§ 482; 8 U. S. C. § 1103(a). In this regard the detention of asuspected alimentary canal smuggler at the border is analo-gous to the detention of a suspected tuberculosis carrier atthe border: both are detained until their bodily processes dis-pel the suspicion that they will introduce a harmful agent intothis country. Cf. 8 U. S. C. § 1222; 42 CFR pt. 34 (1984);19 U. S. C. §§482, 1582.

Respondent's detention was long, uncomfortable, indeed,humiliating; but both its length and its discomfort resultedsolely from the method by which she chose to smuggle illicitdrugs into this country. In Adams v. Williams, 407 U. S.143 (1972), another Terry-stop case, we said that "[t]heFourth Amendment does not require a policeman who lacksthe precise level of information necessary for probable causeto arrest to simply shrug his shoulders and allow a crime tooccur or a criminal to escape." Id., at 145. Here, by anal-ogy, in the presence of articulable suspicion of smuggling inher alimentary canal, the customs officers were not requiredby the Fourth Amendment to pass respondent and her 88cocaine-filled balloons into the interior. Her detention forthe period of time necessary to either verify or dispel thesuspicion was not unreasonable. The judgment of the Courtof Appeals is therefore

Reversed.


531 BRENNAN, J., dissenting

JUSTICE STEVENS, concurring in the judgment.If a seizure and a search of the person of the kind disclosed

by this record may be made on the basis of reasonable suspi-cion, we must assume that a significant number of innocentpersons will be required to undergo similar procedures. Therule announced in this case cannot, therefore, be supported onthe ground that respondent's prolonged and humiliating deten-tion "resulted solely from the method by which she choseto smuggle illicit drugs into this country." Ante, at 544.

The prolonged detention of respondent was, however, jus-tified by a different choice that respondent made; she with-drew her consent to an x-ray examination that would haveeasily determined whether the reasonable suspicion that shewas concealing contraband was justified. I believe that cus-toms agents may require that a nonpregnant person reason-ably suspected of this kind of smuggling submit to an x-rayexamination as an incident to a border search. I thereforeconcur in the judgment.

JUSTICE BRENNAN, with whom JUSTICE MARSHALL joins,dissenting.

We confront a "disgusting and saddening episode" at ourNation's border.1 Shortly after midnight on March 5, 1983,the respondent Rosa Elvira Montoya de Hernandez was de-tained by customs officers because she fit the profile of an"alimentary canal smuggler."2 This proffile did not of coursegive the officers probable cause to believe that De Hernandez

United States v. Holtz, 479 F. 2d 89, 94 (CA9 1973) (Ely, J., dissenting)

(re "the disrobing and search of a woman by United States border police").'Specifically, De Hernandez "had paid cash for her ticket, came from a

source port of embarcation, carried $5,000 in U. S. currency, had mademany trips of short duration into the United States, had no family orfriends in the United States, had only one small piece of luggage, had noconfirmed hotel reservations, did not speak English, and said she was plan-ning to go shopping using taxis for transportation." 731 F. 2d 1369, 1371,n. 3 (CA9 1984).

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BRENNAN, J., dissenting 473 U. S.

was smuggling drugs into the country, but at most a "reason-able suspicion" that she might be engaged in such an attempt.After a thorough strip search failed to uncover any contra-band, De Hernandez agreed to go to a local hospital for anabdominal x ray to resolve the matter. When the officersapproached with handcuffs at the ready to lead her away,however, "she crossed her arms by her chest and began step-ping backwards shaking her head negatively," protesting:"You are not going to put those on me. That is an insult tomy character." 3

Stymied in their efforts, the officers decided on an alter-native course: they would simply lock De Hernandez away inan adjacent manifest room "until her peristaltic functionsproduced a monitored bowel movement." 4 The officers ex-plained to De Hernandez that she could not leave until shehad excreted by squatting over a wastebasket pursuant tothe watchful eyes of two attending matrons. De Hernandezresponded: "I will not submit to your degradation and I'drather die." She was locked away with the matrons.

De Hernandez remained locked up in the room for almost24 hours. Three shifts of matrons came and went duringthis time. The room had no bed or couch on which she couldlie, but only hard chairs and a table. The matrons told herthat if she wished to sleep she could lie down on the hard,uncarpeted floor. De Hernandez instead "sat in her chairclutching her purse," "occasionally putting her head down onthe table to nap."' Most of the time she simply wept andpleaded "to go home." 7 She repeatedly begged for permis-sion "to call my husband and tell him what you are doing to

IDeclaration of Teodora A. Mendoza 6 (Mendoza Declaration), App.58; Declaration of Jose Angel Serrato 10 (Serrato Declaration), App. 47.

4731 F. 2d, at 1371. See also App. 18-20, 25, 28, 58.5 Serrato Declaration 17, App. 48.'Id. 19, App. 48; Declaration of Marilee S. Morgan 3 (Morgan Dec-

laration), App. 49.1 Declaration of Jerome Gonzales 20 (Gonzales Declaration), App. 55.

See also id. 15, App. 54.



me."' 8 Permission was denied. Sobbing, she insisted thatshe had to "make a phone call home so that she could talk toher children and to let them know that everything was allright."9 Permission again was denied. In fact, the matronsconsidered it highly "unusual" that "each time someone en-tered the search room, she would take out two small picturesof her children and show them to the person."'" DeHernandez also demanded that her attorney be contacted."Once again, permission was denied. As far as the outsideworld knew, Rosa de Hernandez had simply vanished. Andalthough she already had been stripped and searched andprobed, the customs officers decided about halfway throughher ordeal to repeat that process-"to ensure the safety ofthe surveilling officers. The result was again negative."' 2

After almost 24 hours had passed, someone finally hadthe presence of mind to consult a Magistrate and to obtaina court order for an x ray and a body-cavity search. 3 De

ISerrato Declaration 12, App. 47. See also Morgan Declaration 5,

App. 49.'Gonzales Declaration 21, App. 55."Morgan Declaration 4, App. 49. See also Gonzales Declaration 15,

App. 54.Serrato Declaration 14, App. 47.Stipulation Re Trial and Order Thereon, App. 64.

"A customs inspector had initially suggested that a court order for anx-ray examination be obtained, but his supervisor vetoed the idea on thegrounds that (1) it was not Government policy to seek judicial authorizationin such circumstances, id., at 22-23, and (2) "they did not have sufficientfacts to support the issuance of the order," 731 F. 2d, at 1373. Theinspector called several hours later and reiterated his suggestion; again itwas denied. Ibid. Not until 16 hours had elapsed did the supervisorbegin to consider obtaining a court order. App. 23. Another eight hourspassed before the supervisor got around to contacting a Federal Magis-trate, who after putting the supervisor under oath and listening to theavailable evidence promptly issued a telephonic order to proceed with thex-ray examination. Declaration of Kyle E. Windes 11, App. 40. Seealso id., at 44-45; n. 27, infra.

The Magistrate's order was based largely on the observations by cus-toms officials of De Hernandez' behavior during her detention. SeeApp. 42. As the Ninth Circuit concluded, because the unlawful detention

OCTOBER TERM, 1984


Hernandez, "very agitated," was handcuffed and led away tothe hospital.14 A rectal examination disclosed the presenceof a cocaine-filled balloon. At approximately 3:15 on themorning of March 6, almost 27 hours after her initial deten-tion, De Hernandez was formally placed under arrest andadvised of her Miranda rights. Over the course of the nextfour days she excreted a total of 88 balloons.

"[T]hat the [respondent] so degraded herself as to offendthe sensibilities of any decent citizen is not questioned." 1

That is not the issue we face. For "i]t is a fair summary ofhistory to say that the safeguards of liberty have frequentlybeen forged in controversies involving not very nice people."United States v. Rabinowitz, 339 U. S. 56, 69 (1950) (Frank-furter, J., dissenting). The standards we fashion to governthe ferreting out of the guilty apply equally to the detentionof the innocent, and "may be exercised by the most unfit andruthless officers as well as by the fit and responsible." Bri-negar v. United States, 338 U. S. 160, 182 (1949) (Jackson, J.,dissenting). 6 Nor is the issue whether there is a "veritable

produced the "additional evidence" that was used to obtain the order, thecontraband discovered in implementing the order was tainted and there-fore improperly introduced at De Hernandez' trial. 731 F. 2d, at 1372.

Morgan Declaration 9, App. 50.16 United States v. Holtz, 479 F. 2d, at 94 (Ely, J., dissenting)."Justice Jackson also noted in Brinegar:"We must remember that the extent of any privilege of search and sei-

zure without warrant which we sustain, the officers interpret and applythemselves and will push to the limit. We must remember, too, that free-dom from unreasonable search differs from some of the other rights of theConstitution in that there is no way in which the innocent citizen caninvoke advance protection. For example, any effective interference withfreedom of the press, or free speech, or religion, usually requires a courseof suppressions against which the citizen can and often does go to the courtand obtain an injunction. Other rights, such as that to an impartial jury orthe aid of counsel, are within the supervisory power of the courts them-selves. Such a right as just compensation for the taking of private prop-erty may be vindicated after the act in terms of money.

"But an illegal search and seizure usually is a single incident, perpe-trated by surprise, conducted in haste, kept purposely beyond the court's



national crisis in law enforcement caused by smuggling ofillicit narcotics." Ante, at 538. There is, and "[s]tern en-forcement of the criminal law is the hallmark of a healthy andself-confident society." Davis v. United States, 328 U. S.582, 615 (1946) (Frankfurter, J., dissenting). "But in ourdemocracy such enforcement presupposes a moral atmo-sphere and a reliance upon intelligence whereby the effectiveadministration of justice can be achieved with due regard forthose civilized standards in the use of the criminal law whichare formulated in our Bill of Rights." Ibid.

The issue, instead, is simply this: Does the Fourth Amend-ment permit an international traveler, citizen or alien, to besubjected to the sort of treatment that occurred in this casewithout the sanction of a judicial officer and based on nothingmore than the "reasonable suspicion" of low-ranking investi-gative officers that something might be amiss? The Courttoday concludes that the Fourth Amendment grants suchsweeping and unmonitored authority to customs officials. Itreasons that "[tihe permissibility of a particular law enforce-ment practice is judged by 'balancing its intrusion on the indi-vidual's Fourth Amendment interests against its promotionof legitimate governmental interests."' Ante, at 537. TheCourt goes on to assert that the "balance of reasonableness isqualitatively different at the international border," and thatsearches and seizures in these circumstances may thereforebe conducted without probable cause or a warrant. Ante, at538. Thus a traveler at the Nation's border may be detainedfor criminal investigation merely if the authorities "reason-ably suspect that the traveler is smuggling contraband."Ante, at 541. There are no "hard-and-fast time limits" for

supervision and limited only by the judgment and moderation of officerswhose own interests and records are often at stake in the search. There isno opportunity for injunction or appeal to disinterested intervention. Thecitizen's choice is quietly to submit to whatever the officers undertake or toresist at risk of arrest or immediate violence." 338 U. S., at 182 (dissent-ing opinion).

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such investigative detentions, because "'common sense andordinary human experience must govern over rigid crite-ria."' Ante, at 543. Applying this "reasonableness" test tothe instant case, the Court concludes that the "[r]espondentalone was responsible for much of the duration and discom-fort of the seizure." Ibid.

JUSTICE STEVENS takes a somewhat different tack. Ap-parently convinced that the health effects of x-irradiation onhuman beings stand established as so minimal as to be littlecause for concern, he believes that low-ranking customs offi-cials on their own initiative may require nonpregnant inter-national travelers to submit to warrantless x rays on nothingmore than suspicion if such travelers wish to avoid inde-terminate warrantless detentions. Because De Hernandezwithdrew her consent to proceed in handcuffs to such anexamination, "[t]he prolonged detention of respondent was... justified." Ante, at 545 (concurring in judgment).

I dissent. Indefinite involuntary incommunicado deten-tions "for investigation" are the hallmark of a police state, nota free society. See, e. g., Dunaway v. New York, 442 U. S.200 (1979); Brown v. Illinois, 422 U. S. 590 (1975); Davis v.Mississippi, 394 U. S. 721 (1969). In my opinion, Govern-ment officials may no more confine a person at the borderunder such circumstances for purposes of criminal investiga-tion than they may within the interior of the country. Thenature and duration of the detention here may well have beentolerable for spoiled meat or diseased animals, but not forhuman beings held on simple suspicion of criminal activity. Ibelieve such indefinite detentions can be "reasonable" underthe Fourth Amendment only with the approval of a magis-trate. I also believe that such approval can be given onlyupon a showing of probable cause. Finally, I believe thatthe warrant and probable-cause safeguards equally governJUSTICE STEVENS' proffered alternative of exposure tox-irradiation for criminal-investigative purposes.



I

Travelers at the national border are routinely subjectedto questioning, patdowns, and thorough searches of theirbelongings. These measures, which involve relatively lim-ited invasions of privacy and which typically are conducted onall incoming travelers, do not violate the Fourth Amendmentgiven the interests of "national self protection reasonablyrequiring one entering the country to identify himself asentitled to come in, and his belongings as effects which maybe lawfully brought in." Carroll v. United States, 267 U. S.132, 154 (1925). 17 Individual travelers also may be singledout on "reasonable suspicion" and briefly held for furtherinvestigation. Cf. Terry v. Ohio, 392 U. S. 1 (1968).18 Atsome point, however, further investigation involves suchsevere intrusions on the values the Fourth Amendment pro-tects that more stringent safeguards are required. Forexample, the length and nature of a detention may, at leastwhen conducted for criminal-investigative purposes, ripeninto something approximating a full-scale custodial arrest -indeed, the arrestee, unlike the detainee in cases such asthis, is at least given such basic rights as a telephonecall, Miranda warnings, a bed, a prompt hearing beforethe nearest federal magistrate, an appointed attorney, andconsideration of bail. In addition, border detentions mayinvolve the use of such highly intrusive investigative tech-niques as body-cavity searches, x-ray searches, and stomachpumping.19

"See generally 3 W. LaFave, Search and Seizure § 10.5, pp. 276-281(1978) (LaFave).

I See generally id. § 10.5, at 281-286."See generally id. § 10.5, at 286-295; Note, From Bags to Body Cavi-

ties: The Law of Border Search, 74 Colum. L. Rev. 53 (1974); Comment,Intrusive Border Searches-Is Judicial Control Desirable?, 115 U. Pa. L.Rev. 276 (1966); Note, Border Searches and the Fourth Amendment, 77Yale L. J. 1007 (1968).

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I believe that detentions and searches falling into thesemore intrusive categories are presumptively "reasonable"within the meaning of the Fourth Amendment only if author-ized by a judicial officer. "Though the Fourth Amendmentspeaks broadly of 'unreasonable searches and seizures,' thedefinition of 'reasonableness' turns, at least in part, on themore specific commands of the warrant clause." UnitedStates v. United States District Court, 407 U. S. 297, 315(1972).

"The point of the Fourth Amendment, which often is notgrasped by zealous officers, is not that it denies lawenforcement the support of the usual inferences whichreasonable men draw from evidence. Its protectionconsists in requiring that those inferences be drawn by aneutral and detached magistrate instead of being judgedby the officer engaged in the often competitive enter-prise of ferreting out crime .... When the right of pri-vacy must reasonably yield to the right of search is, as arule, to be decided by a judicial officer, not by a police-man or government enforcement agent." Johnson v.United States, 333 U. S. 10, 13-14 (1948).

Accordingly, the Court repeatedly has emphasized that theFourth Amendment's Warrant Clause is not mere "deadlanguage" or a bothersome "inconvenience to be somehow'weighed' against the claims of police efficiency. It is, orshould be, an important working part of our machinery ofgovernment, operating as a matter of course to check the'well-intentioned but mistakenly overzealous executive offi-cers' who are a part of any system of law enforcement."United States v. United States District Court, supra, at 315;Coolidge v. New Hampshire, 403 U. S. 443, 473-484 (1971).20

2 See Katz v. United States, 389 U. S. 347, 354 (1967); Berger v. NewYork, 388 U. S. 41, 57, 60 (1967); Beck v. Ohio, 379 U. S. 89, 96-97 (1964);Wong Sun v. United States, 371 U. S. 471, 481-482 (1963); Agnello v.



We have, to be sure, held that executive officials neednot obtain prior judicial authorization where exigent cir-cumstances would make such authorization impractical andcounterproductive. In so holding, however, we have reaf-firmed the general rule that "the police must, wheneverpracticable, obtain advance judicial approval of searches andseizures through the warrant procedure." Terry v. Ohio,supra, at 20. And even where a person has permissiblybeen taken into custody without a warrant, we have held thata prompt probable-cause determination by a detached magis-trate is a constitutional "prerequisite to extended restraint ofliberty following arrest." Gerstein v. Pugh, 420 U. S. 103,114 (1975).21 Cf. Mallory v. United States, 354 U. S. 449,451-452 (1957); McNabb v. United States, 318 U. S. 332, 342(1943); 18 U. S. C. § 3501(c); Fed. Rule Crim. Proc. 5.

United States, 269 U. S. 20, 33 (1925). See also New Jersey v. T. L. 0.,469 U. S. 325, 357 (1985) (BRENNAN, J., dissenting) (emphasis in original):

"To require a showing of some extraordinary governmental interest be-fore dispensing with the warrant requirement is not to undervalue soci-ety's need to apprehend violators of the criminal law. To be sure, forcinglaw enforcement personnel to obtain a warrant before engaging in a searchwill predictably deter the police from conducting some searches that theywould otherwise like to conduct. But this is not an unintended result ofthe Fourth Amendment's protection of privacy; rather, it is the very pur-pose for which the Amendment was thought necessary. Only where thegovernmental interests at stake exceed those implicated in any ordinarylaw enforcement context-that is, only where there is some extraordinarygovernmental interest involved-is it legitimate to engage in a balancingtest to determine whether a warrant is indeed necessary."

1"Once the suspect is in custody.... the reasons that justify dispensingwith the magistrate's neutral judgment evaporate. There no longer is anydanger that the suspect will escape or commit further crimes while the po-lice submit their evidence to a magistrate. And, while the State's reasonsfor taking summary action subside, the suspect's need for a neutral deter-mination of probable cause increases significantly. The consequences ofprolonged detention may be more serious than the interference occasionedby arrest .... When the stakes are this high, the detached judgment ofa neutral magistrate is essential if the Fourth Amendment is to furnish

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There is no persuasive reason not to apply these principlesto lengthy and intrusive criminal-investigative detentions oc-curring at the Nation's border. To be sure, the Court todayinvokes precedent stating that neither probable cause nor awarrant ever have been required for border searches. Seeante, at 537, citing United States v. Ramsey, 431 U. S. 606(1977). If this is the law as a general matter, I believe it istime that we reexamine its foundations.' For while thepower of Congress to authorize wide-ranging detentions andsearches for purposes of immigration and customs control isunquestioned, the Court previously has emphasized that fardifferent considerations apply when detentions and searchesare carried outfor purposes of investigating suspected crimi-nal activity. See Wong Wing v. United States, 163 U. S.228, 231, 235-236, 238 (1896); see also Abel v. United States,362 U. S. 217, 250 (1960) (BRENNAN, J., dissenting). Andeven if the Court is correct that such detentions for purposesof criminal investigation were viewed as acceptable a centuryor two ago, see ante, at 537, we repeatedly have stressedthat "this Court has not simply frozen into constitutional lawthose law enforcement practices that existed at the time ofthe Fourth Amendment's passage." Payton v. New York,445 U. S. 573, 591, n. 33 (1980); see also Tennessee v. Gar-ner, 471 U. S. 1, 13 (1985).

The Government contends, however, that because investi-gative detentions of the sort that occurred in this case neednot be supported by probable cause, no warrant is required,given the phraseology of the Fourth Amendment's Warrant

meaningful protection from unfounded interference with liberty." Ger-stein v. Pugh, 420 U. S., at 114.

'Others agree. See, e. g., 3 LaFave § 10.5, at 325 (Ramsey offeredonly "a flimsy and not particularly satisfying explanation" for refusing toapply the warrant requirement); Note, 74 Colum. L. Rev., supra n. 19, at82-86; Comment, 115 U. Pa. L. Rev., supra n. 19, at 277. See also UnitedStates v. Holtz, 479 F. 2d, at 94 (Ely, J., dissenting); Blefare v. UnitedStates, 362 F. 2d 870, 880 (CA9 1966) (Ely, J., dissenting).



Clause. See Brief for United States 29, n. 26. Evenassuming that border detentions and searches that becomelengthy and highly intrusive need not be supported by proba-ble cause, but see Part II, infra, this reasoning runs squarelycontrary to the Court's administrative-warrant cases. Wehave repeatedly held that the Fourth Amendment's purposeof safeguarding "the privacy and security of individualsagainst arbitrary invasions by government officials" is so fun-damental as to require, except in "certain carefully definedclasses of cases," a magistrate's prior authorization evenwhere "[p]robable cause in the criminal law sense is not re-quired." Camara v. Municipal Court, 387 U. S. 523, 528(1967); Marshall v. Barlow's, Inc., 436 U. S. 307, 312, 320(1978). We have applied this requirement to fire, health,and housing-code inspections, Camara v. Municipal Court,supra; See v. Seattle, 387 U. S. 541 (1967), to occupationalhealth and safety inspections of the workplace, Marshall v.Barlow's, Inc., supra, and to arson investigations, Michiganv. Clifford, 464 U. S. 287 (1984) (plurality opinion); Michiganv. Tyler, 436 U. S. 499 (1978). See also Almeida-Sanchez v.United States, 413 U. S. 266, 279-285 (1973) (POWELL, J.,concurring) (prior judicial authorization is required for area-wide roving searches near the border); United States v.United States District Court, 407 U. S., at 322-324 (priorjudicial authorization of national-security wiretaps).

Something has gone fundamentally awry in our constitu-tional jurisprudence when a neutral and detached magis-trate's authorization is required before the authorities mayinspect "the plumbing, heating, ventilation, gas, and electri-

'The Fourth Amendment provides: "The right of the people to besecure in their persons, houses, papers, and effects, against unreasonablesearches and seizures, shall not be violated, and no Warrants shall issue,but upon probable cause, supported by Oath or affirmation, and particu-larly describing the place to be searched, and the persons or things to beseized."

OCTOBER TERM, 1984


cal systems" in a person's home,24 investigate the back roomsof his workplace, or poke through the charred remains of hisgutted garage, but not before they may hold him in indefiniteinvoluntary isolation at the Nation's border to investigatewhether he might be engaged in criminal wrongdoing. Noless than those who conduct administrative searches, thosecharged with investigative duties at the border "should notbe the sole judges of when to utilize constitutionally sensitivemeans in pursuing their tasks," because "unreviewed execu-tive discretion may yield too readily to pressures to obtainincriminating evidence and overlook potential invasions ofprivacy." Id., at 317. And unlike administrative searches,which typically involve "relatively limited invasion[s]" of indi-vidual privacy interests, Camara v. Municipal Court, supra,at 537, many border searches carry grave potential for "arbi-trary and oppressive interference by enforcement officialswith the privacy and personal security of individuals,"United States v. Martinez-Fuerte, 428 U. S. 543, 554 (1976);see also United States v. Ortiz, 422 U. S. 891, 895 (1975);Almeida-Sanchez v. United States, supra, at 273-275. Theconditions of De Hernandez' detention in this case-indefiniteconfinement in a squalid back room cut off from the outsideworld, the absence of basic amenities that would have beenprovided to even the vilest of hardened criminals, repeatedstrip searches -in many ways surpassed the conditions ofa full custodial arrest. Although the Court previously hasdeclined to require a warrant for border searches involving"minor interference with privacy resulting from the merestop for questioning," United States v. Martinez-Fuerte,supra, at 565, surely there is no parallel between such"minor" intrusions and the extreme invasion of personal pri-vacy and dignity that occurs in detentions and searches suchas that before us today.

24 LaFave, Administrative Searches and the Fourth Amendment: The

Camara and See Cases, 1967 S. Ct. Rev. 1, 19.



Moreover, the available evidence suggests that the num-ber of highly intrusive border searches of suspicious-lookingbut ultimately innocent travelers may be very high. Onephysician who at the request of customs officials conductedmany "internal searches"-rectal and vaginal examinationsand stomach pumping-estimated that he had found contra-band in only 15 to 20 percent of the persons he had exam-ined.2" It has similarly been estimated that only 16 percentof women subjected to body-cavity searches at the borderwere in fact found to be carrying contraband. 6 It is pre-cisely to minimize the risk of harassing so many innocent peo-ple that the Fourth Amendment requires the interventionof a judicial officer. See, e. g., Coolidge v. New Hampshire,403 U. S., at 481. And even if the warrant safeguard weresomehow a mere inconvenient nuisance to be "'weighed'against the claims of police efficiency," ibid., the Governmentpoints to no unusual efficiency concerns suggesting that thissafeguard should be overridden in the run of such intrusiveborder-search cases. Certainly there were no "exigent cir-cumstances" supporting the indefinite warrantless detentionhere, and the Government's interest in proceeding expe-ditiously could have been achieved by obtaining a telephonic

Thompson v. United States, 411 F. 2d 946, 948 (CA9 1969); see alsoMorales v. United States, 406 F. 2d 1298, 1300, n. 2 (CA9 1969).

26 United States v. Holtz, 479 F. 2d, at 94 (Ely, J., dissenting) (citing

testimony from congressional hearings). It was suggested at oral argu-ment that "with all the experience the government has had in the interven-ing years with increasing drug traffic" there might be "a little more skill indetection today." Tr. of Oral Arg. 38. There are, however, no publishedstatistics more recent than the information discussed in text. It is ofcourse the Government's burden to muster facts demonstrating the reason-ableness of its investigative practices. See, e. g., Florida v. Royer, 460U. S. 491, 500 (1983) (plurality opinion). The Government advised theCourt at argument that it has more recent statistical evidence respectingthe number of innocent travelers who are subjected to x-ray searches, butdid not disclose that evidence because "it's not in the record and it's notpublic." Tr. of Oral Arg. 23.

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search warrant -a procedure "ideally suited to the peculiarneeds of the customs authorities" and one that ultimately wasused in this case a full day after De Hernandez was firstdetained. 27

The Court supports its evasion of the warrant require-ment, however, by analogizing to the Terry line of casesauthorizing brief detentions based on reasonable suspicion.It argues that no "hard-and-fast time limits" can apply in thiscontext because "alimentary canal smuggling cannot bedetected in the amount of time in which other illegal activitymay be investigated through brief Terry-type stops." Ante,at 543. I have previously set forth my views on the properscope and duration of Terry stops,' and need not repeat thoseviews in detail today. It is enough for present purposes tonote that today's opinion is the most extraordinary exampleto date of the Court's studied effort to employ the Terry deci-sion as a means of converting the Fourth Amendment intoa general "reasonableness" balancing process-a process"in which the judicial thumb apparently will be planted firmlyon the law enforcement side of the scales." United Statesv. Sharpe, 470 U. S. 675, 720 (1985) (BRENNAN, J., dissent-ing). We previously have emphasized that Terry allows theauthorities briefly to detain an individual for investigationand questioning, but that "any further detention or searchmust be based on consent or probable cause." United Statesv. Brignoni-Ponce, 422 U. S. 873, 882 (1975) (emphasis

"Note, 74 Colum. L. Rev., supra n. 19, at 85; see n. 13, supra. TheGovernment argues, however, that "[a] warrant requirement would be es-pecially inappropriate in this context because the suspect would have to bedetained while the officer obtained the warrant . . . ." Brief for UnitedStates 29-30, n. 26. Coming from the Government in a case in which it isseeking to defend a 27-hour detention, this expression of purported con-cern for travelers' rights is simply incredible.

I See, e. g., United States v. Sharpe, 470 U. S. 675, 702 (1985) (dis-senting); United States v. Place, 462 U. S. 696, 710 (1983) (concurringin result); Kolender v. Lawson, 461 U. S. 352, 362 (1983) (concurring);Florida v. Royer, supra, at 509 (concurring in result).



added). Allowing such warrantless detentions under Terrysuggests that the authorities might hold a person on suspi-cion for "however long it takes" to get him to cooperate, or totransport him to the station where the "legitimate" stateinterests more fully can be pursued, or simply to lock himaway while deciding what the State's "legitimate" interestsrequire. But the Fourth Amendment flatly prohibits such"wholesale intrusions upon the personal security" of individ-uals, and any application of Terry even by analogy to permitsuch indefinite detentions "would threaten to swallow" thebasic probable-cause and warrant safeguards. Dunaway v.New York, 442 U. S., at 213; see Davis v. Mississippi, 394U. S., at 726.1 It is simply staggering that the Court sug-gests that Terry would even begin to sanction a 27-hourcriminal-investigative detention, even one occurring at theborder.

The Court argues, however, that the length and "discom-fort" of De Hernandez' detention "resulted solely from themethod by which she chose to smuggle illicit drugs into thiscountry," and it speculates that only her "'heroic"' effortsprevented the detention from being brief and to the point.Ante, at 544 (emphasis added). Although we now knowthat De Hernandez was indeed guilty of smuggling drugsinternally, such post hoc rationalizations have no place inour Fourth Amendment jurisprudence, which demands thatwe "prevent hindsight from coloring the evaluation of thereasonableness of a search or seizure." United States v.Martinez-Fuerte, 428 U. S., at 565. See also Beck v. Ohio,379 U. S. 89, 96 (1964). At the time the authorities simplyhad, at most, a reasonable suspicion that De Hernandez

I See also Florida v. Royer, supra, at 499, 505-506 (plurality opinion);Brown v. Illinois, 422 U, S. 590, 605 (1975) ("The impropriety of the arrestwas obvious .... The arrest, both in design and in execution, was investi-gatory. The detectives embarked upon this expedition for evidence in thehope that something might turn up. The manner in which Brown's arrestwas effected gives the appearance of having been calculated to cause sur-prise, fright, and confusion").

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might be engaged in such smuggling. Neither the law of theland nor the law of nature supports the notion that petty gov-ernment officials can require people to excrete on command;indeed, the Court relies elsewhere on "[t]he rudimentaryknowledge of the human body" in sanctioning the "muchlonger than ... typical" duration of detentions such as this.Ante, at 543. And, with all respect to the Court, it is not"'unrealistic second-guessing,"' ante, at 542, to predict thatan innocent traveler, locked away in incommunicado deten-tion in unfamiliar surroundings in a foreign land, might wellbe so frightened and exhausted as to be unable so to "cooper-ate" with the authorities. 0

The Court further appears to believe that such investiga-tive practices are "reasonable," however, on the premise thata traveler's "expectation of privacy [is] less at the borderthan in the interior." Ante, at 539. This may well be sowith respect to routine border inspections, but I do not imag-ine that decent and law-abiding international travelers haveyet reached the point where they "expect" to be thrown intolocked rooms and ordered to excrete into wastebaskets, heldincommunicado until they cooperate, or led away in handcuffsto the nearest hospital for exposure to various medical proce-dures -all on nothing more than the "reasonable" suspicionsof low-ranking enforcement agents. In fact, many peoplefrom around the world travel to our borders precisely toescape such unchecked executive investigatory discretion.What a curious first lesson in American liberty awaits them

I As De Hernandez' counsel observed at argument: "What if an innocenttraveler just because they have had a long flight was unable to excrete andfound themselves in a position where a border agent said well, we wish youto excrete [on] command so that we will be sure that you're not carryinganything internally. An innocent person might be unable to do that oncommand, and it wouldn't be heroic efforts in that case .... It's certainlypossible that a person who is nervous or afraid anyway because they arebeing confined would be unable to excrete for a lengthy period of time, butthat wouldn't necessarily mean evidence of guilt." Tr. of Oral Arg. 28-29.



on their arrival. Cf. Olmstead v. United States, 277 U. S.438, 485 (1928) (Brandeis, J., dissenting).'

Finally, I disagree with JUSTICE STEVENS that De Her-nandez' alternative "choice" of submitting to abdominalx-irradiation at the discretion of customs officials made thisdetention"justified." Ante, at 545 (concurring in judgment).Medical x rays are of course a common diagnostic technique;that is exactly why there is such a sharp debate among themedical community concerning the cellular and chromosomaleffects of routine reliance on x rays, both from the per-spective of individual health (it having been estimated that aroutine medical x ray takes about six days off a person's lifeexpectancy 2) and from the perspective of successive genera-tions. The "additivity" factor-the cumulative effect ofx rays on an individual's biological and genetic well-being-has been the subject of particularly disturbing debate.'

11 As I have written in the analogous context of searches of children con-ducted by school authorities:

"We do not know what class petitioner was attending when the policeand dogs burst in, but the lesson the school authorities taught her that daywill undoubtedly make a greater impression than the one her teacher hadhoped to convey. I would grant certiorari to teach petitioner another les-son: that the Fourth Amendment protects '[tihe right of the people to besecure in their persons, houses, papers, and effects, against unreasonablesearches and seizures'. . . . Schools cannot expect their students to learnthe lessons of good citizenship when the school authorities themselves dis-regard the fundamental principles underpinning our constitutional free-doms." Doe v. Renfrow, 451 U. S. 1022, 1027-1028 (1981) (dissentingfrom denial of certiorari). See also New Jersey v. T. L. 0., 469 U. S., at354 (BRENNAN, J., dissenting); id., at 373-374 (STEVENS, J., dissenting).Cf. 8 U. S. C. § 1423(2) (as a condition of naturalization, a person musthave "a knowledge and understanding of the fundamentals of the history,and of the principles and form of government, of the United States").

Gregg, Effects of Ionizing Radiations on Humans, in 2 Handbook ofMedical Physics 404 (R. Waggener ed. 1982).

nSee generally id., at 375-411; H. Cember, Introduction to HealthPhysics 177-199 (2d ed. 1983); U. S. Department of Health and HumanServices, Food and Drug Administration, Public Health Service, PossibleGenetic Damage from Diagnostic X Irradiation: A Review (1980).

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But these dangers are not the gravamen of my disputewith JUSTICE STEVENS; the Court has concluded that med-ical practices far more immediately intrusive than this mayin carefully limited circumstances be employed as a tool ofcriminal investigation. Cf. Winston v. Lee, 470 U. S. 753(1985). Rather, the crux of my disagreement is this: Wehave learned in our lifetimes, time and again, the inherentdangers that result from coupling unchecked "law enforce-ment" discretion with the tools of medical technology. Ac-cordingly, in this country at least, "[t]he importance ofinformed, detached and deliberate [judicial] determinationsof the issue whether or not to invade another's body in searchof evidence of guilt is indisputable and great." Schmerber v.California, 384 U. S. 757, 770 (1966). Because "[s]earchwarrants are ordinarily required for searches of dwell-ings, . . . absent an emergency, no less could be requiredwhere intrusions into the human body are concerned." Ibid.(emphasis added). This should be so whether the intru-sion is by incision, by stomach pumping, or by exposureto x-irradiation. Because no exigent circumstances pre-vented the authorities from seeking a magistrate's authoriza-tion so to probe De Hernandez' abdominal cavity, the prof-fered alternative "choice" of a warrantless x ray was justas impermissible as the 27-hour detention that actuallyoccurred.

II

I believe that De Hernandez' detention violated the FourthAmendment for an additional reason: it was not supported byprobable cause. In the domestic context, a detention of thesort that occurred here would be permissible only if therewere probable cause at the outset. See, e. g., Hayes v.Florida, 470 U. S. 811, 815 (1985); Dunaway v. New York,442 U. S., at 207-208, 212-216; Brown v. Illinois, 422 U. S.,at 602, 605; Davis v. Mississippi, 394 U. S., at 726-727. This



same elementary safeguard should govern border searcheswhen carried out for purposes of criminal investigation.

To be sure, it is commonly asserted that as a result of theFourth Amendment's "border exception" there is no require-ment of probable cause for such investigations.' But thejustifications for the border exception necessarily limit itsbreadth. The exception derives from the unquestioned andparamount interest in "national self protection reasonablyrequiring one entering the country to identify himself asentitled to come in, and his belongings as effects which maybe lawfully brought in." Carroll v. United States, 267U. S., at 154. See also Almeida-Sanchez v. United States,413 U. S., at 272 (border exception is a reasonable conditionfor those "seeking to cross our borders"); United States v.12 200-Ft. Reels of Film, 413 U. S. 123, 125 (1973) (borderexception is a reasonable condition "to prevent prohibitedarticles from entry"). Subject only to the other applicableguarantees of the Bill of Rights, this interest in "nationalself-protection" is plenary. Thus, as the Court notes, a sus-pected tuberculosis carrier may be detained at the border formedical testing and treatment as a condition of entry. Ante,at 544. As a condition of entry, the traveler may be sub-jected to exhaustive processing and examinations, and hisbelongings may be scrutinized with exacting care.85 I haveno doubt as well that, as a condition of entry, travelers inappropriate circumstances may be required to excrete theirbodily wastes for further scrutiny and to submit to diagnosticx rays.

Contrary to the Court's reasoning, however, the Govern-ment in carrying out such immigration and customs functionsdoes not simply have the two stark alternatives of either forc-

I'See, e. g., United States v. Ramsey, 431 U. S. 606, 616, 619 (1977);3 LaFave § 10.5, at 276-295.

1See generally 8 U. S. C. § 1181 et seq.; 19 U. S. C. §232 et seq., § 1701et seq.

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ing a traveler to submit to such procedures or allowing him to"pass ... into the interior." Ante, at 544. There is a thirdalternative: to instruct the traveler who refuses to submit toburdensome but reasonable conditions of entry that he is freeto turn around and leave the country. In fact, I believe thatthe "reasonableness" of any burdensome requirement forentry is necessarily conditioned on the potential entrant'sfreedom to leave the country if he objects to that require-ment. Surely the Government's manifest interest in pre-venting potentially excludable individuals carrying potentialcontraband from crossing our borders is fully vindicated ifthose individuals voluntarily decided not to cross the borders.

This does not, of course, mean that such individuals are notfully subject to the criminal laws while on American soil. Ifthere is probable cause to believe they have violated the law,they may be arrested just like any other person within ourborders. And if there is "reasonable suspicion" to believethey may be engaged in such violations, they may briefly bedetained pursuant to Terry for further investigation, subjectto the same limitations and conditions governing Terry stopsanywhere else in the country. 6 But if such Terry suspiciondoes not promptly ripen into probable cause, such travelersmust be given a meaningful choice: either agree to further de-tention as a condition of eventual entry, or leave the country.

The Government disagrees. We were advised at oral ar-gument that it "definitely" is the policy of customs authorities"not to allow such people, if they're reasonably suspected ofdrug smuggling, to return before that suspicion can bechecked out" and that, whether citizen, resident alien, oralien, "[w]e would not simply let them go back." Tr. of OralArg. 5, 48. The result is to sanction an authoritarian twi-light zone on the border. The suspicious-looking travelermay not enter the country. Nor may he leave. Instead, he

'See, e. g., United States v. Place, 462 U. S., at 707-710; Florida v.Royer, 460 U. S., at 499-500 (plurality opinion); Dunaway v. New York,442 U. S. 200, 210-216 (1979).



is trapped on the border. Because he is on American soil,he is fully subject "to the criminal enforcement powers ofthe Federal Government." Ante, at 539, citing 19 U. S. C.§ 482. But notwithstanding that he is on American soil, he isnot fully protected by the guarantees of the Bill of Rightsapplicable everywhere else in the country. To be sure, awatered-down "reasonableness" requirement will technicallygovern such detentions, but it will accommodate itself toassaults on privacy and personal autonomy that would not forone moment pass constitutional muster anywhere else in thecountry and that would surely provide grounds for an open-and-shut damages action for violations of basic civil rights ifconducted anywhere but on the border.

Nothing in the underlying premises of the "border excep-tion" supports such a ring of unbridled authoritarianism sur-rounding freedom's soil. If the traveler does not wish toconsent to prolonged detentions or intrusive examinations,the Nation's customs and immigration interests are fullyserved by sending the traveler on his way elsewhere. If theauthorities nevertheless propose to detain the traveler forpurposes of subjecting him to criminal investigation and pos-sible arrest and punishment, they may do so only pursuant toconstitutional safeguards applicable to everyone else in thecountry. See Wong Wing v. United States, 163 U. S., at236-238; Abel v. United States, 362 U. S., at 250 (BRENNAN,

J., dissenting)." Chief among those safeguards is the re-

"Although the Government now disavows those actions, see Tr. of OralArg. 5, 48, the customs authorities apparently sought to arrange to haveDe Hernandez flown either to Mexico or back to Colombia, but concludedthat she would not be able to secure a flight for at least two days. SeeApp. 18, 22, 28, 32; Serrato Declaration 17, App. 48; Gonzales Declaration

20, App. 55; Mendoza Declaration 8-10, App. 58. Even if the Govern-ment had not repudiated these efforts, it is clear that, as the District Courtfound, De Hernandez was subjected to exacting surveillance during thistime for purposes of criminal investigation and possible arrest. Id., at 37.See also Serrato Declaration 18, App. 48 ("I told her also that if while sheis in our custody, if she discharges anything illegally internally, she will be

OCTOBER TERM, 1984


quirement that, except in limited circumstances not presenthere, custodial detentions occur only on probable cause. Theprobable-cause standard rests on "a practical, nontechnicalconception affording the best compromise that has beenfound for accommodating" the "often opposing" interests oflaw enforcement and individual liberty. Brinegar v. UnitedStates, 338 U. S., at 176 (Jackson, J., dissenting). See alsoNew Jersey v. T. L. 0., 469 U. S. 325, 361-362 (1985) (BREN-NAN, J., dissenting). That standard obviously is not met,and was not met here, simply by courier profiles, "commonrumor or report, suspicion, or even 'strong reason to sus-pect."' Henry v. United States, 361 U. S. 98, 101 (1959).Because the contraband in this case was the fruit of theauthorities' indefinite detention of Rosa de Hernandez with-out probable cause or a warrant, I would affirm the judgmentof the Court of Appeals for the Ninth Circuit reversing herconviction.

III

In my opinion, allowing the Government to hold someonein indefinite, involuntary, incommunicado isolation without

placed under arrest and transported to a jail ward and be unable to leavethe United States").

The Government argues that giving a traveler the option of leaving thecountry rather than being forced to undergo lengthy custodial criminalinvestigations based on mere suspicion "is an unsatisfactory alternativebecause it would allow the suspect to escape apprehension and return torepeat his smuggling efforts another day. In addition, this approachwould remove a disincentive to smuggling activity by materially reducingthe risk of apprehension and prosecution." Brief for United States 17-18,n. 9. This is exactly the same argument made whenever courts enforcethe safeguards of the Fourth Amendment, and we have consistentlystressed that if constitutionally permissible investigative stops do notpromptly uncover sufficient evidence to support an arrest, the detaineemust be released as a necessary consequence of constitutional liberty.See, e. g., United States v. Place, supra, at 709-710; Florida v. Royer,supra, at 499 (plurality opinion) ("the police [may not] seek to verify theirsuspicions by means that approach the conditions of arrest"); Dunaway v.New York, supra, at 211-216; United States v. Brignoni-Ponce, 422 U. S.873, 881-882 (1975).



probable cause and a judicial warrant violates our constitu-tional charter whether the purpose is to extract ransom orto investigate suspected criminal activity. Nothing in theFourth Amendment permits an exception for such actions atthe Nation's border. It is tempting, of course, to look theother way in a case that so graphically illustrates the "veri-table national crisis" caused by narcotics trafficking. Ante,at 538. But if there is one enduring lesson in the long strug-gle to balance individual rights against society's need todefend itself against lawlessness, it is that "[i]t is easy tomake light of insistence on scrupulous regard for the safe-guards of civil liberties when invoked on behalf of the unwor-thy. It is too easy. History bears testimony that by suchdisregard are the rights of liberty extinguished, heedlessly atfirst, then stealthily, and brazenly in the end." Davis v.United States, 328 U. S., at 597 (Frankfurter, J., dissenting).

I dissent.

united states v. montoya hernandez · mendez-jimenez, 709 f. 2d 1300, 1301 (ca9 1983). the...

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